Attachment A

Rule Language and Preamble Language that is Consistent with a Contaminant by

Contaminant and with a Fuel by Fuel Comparison Approach Rule Language: The non - hazardous secondary material must contain contaminants at levels comparable in con centration to or lower than those in traditional fuels wh ich the combustion unit is designed to burn. Such comparison is to be based on a direct comparison of the contaminant levels in the nonhazardous secondary material to the traditional fuel itself

. 40 C.F.R. 241.3(d)(1)(iii). While the first sentence is written the plural, the second sentence is written in the singular. Contaminants means any constituent in non

- hazardous secondary materials that will result in emissions of the air pollutants iden tified in Clean Air Act section 112(b) or the nine pollutants listed under Clean Air Act section 129(a)(4)) w hen such non

- hazardous secondary materials are burned as a fuel or used as an ingredient, including those constituents that could generate productsof incomplete combustion . 40 C.F.R. 241.2. Any const ituent is written in the singular. Preamble Language. Com parison to one contaminant: Lead: A non

- hazardous secondary material contains 500 parts per million (ppm) of lead, w hile the traditiona l fuel that w ould or could be burned in the combustion unit contains 475 ppm of lead. These levels w ould be considered comparable (since it falls within a small acceptable range) and thus, w ould meet this factor. If, on the other hand, the level of lead in the non

- hazardous secondary material was 1,000 ppm, these levels w ould not be comparable and it may indicate that the nonhazardous secondary material w as being burned to dispose of the material and that the activity is sham recycling 76 Fed. Reg. at 155 24. Bari

um: A traditional fuel contains no detectable amounts of barium, w hile the non

- hazardous secondary material contains a minimal amount of barium (e.g., 1 ppm). In this situation, the levels w

ould be considered comparable since it falls within a small acceptable range.2

If, how ever, the barium were at much higher levels in the non - hazardous secondary material (such as 50 ppm), the levels wo uld not be comparable and it may indicate discard of the barium and sham recycling. 76 Fed. Reg. at 15524. Formaldehyde: The existing data w

e have is that resinated wood residuals contain ‘‘free’’ formaldehyde at levels less than 0.02 percent (or 200 ppm). In addition, new rules, as mandated by the CARB Composite Wood ATCM, per new Public Law 111

– 199, will reduce the formaldehyde levels even further to levels that are comparable to unadulterated w ood. We also have limited data on the formaldehyde levels in traditional fuels. Specifically, w e have limited data that natural w ood has between 0.6 and 8.5 ppm of fo rmaldehyde, but we have no data on formaldehyde levels in other traditional fuels, such as coal, oil, and natural gas. We do know

, how ever, that organic materials produce formaldehyde. For example, studies have shown that formaldehyde is generated from coa l piles. Thus, considering the fact that new rules will reduce the amount of formaldehyde to levels comparable to unadulterated w ood, we have concluded that resinated w ood residuals wh en burned as a fuel by the generator or outside the control of the gener ator and not discarded should be considered a non

- wa ste fuel. However, as we have noted elsewhere, the generator of these secondary materials w ould still need to demonstrate that such residuals meet the legitimacy criteria. Thus, they would need to show that the levels of formaldehyde, as w

ell as other possible contaminants, in the resinated w ood residuals are at levels comparable to those found in traditional fuels, w hich in this case w

ould be natural w ood. We would note that w e would not consider levels of formaldehyde of 200 ppm or slightly less to be comparable since the levels in unadulterated w ood are at least tw o orders of magnitude low er. The levels w

ould need to be low

er to be considered comparable to those found in natural w ood

. Id. Chlorine: The proposed rule acknowledged a general lack of data regarding contaminant levels in pulp and paper sludges and specifically requested data on the issue in order to make a determination of w

hether pulp and paper sludges meets the third criterion of com parable contaminant levels to traditional fuels . The information w e received indicates that these nonhazardous secondary materials meet the contaminant legitimacy criterion

. We note that there is one sample in the submitted data set that has a chlorine con centration of 16,550 ppm. We do not consider this to be comparable to the levels found in coal and, wh ere it is replacing coal, w ould consider this material to be a solid w aste. However, since this w

as the only sample with such a high concentration of chlo rine, w e do not think that it is representative of pulp and paper sludges generally.. 76 Fed. Reg. at 15488 [C]hlorine levels in pulp and paper sludges should particularly be monitored and evaluated as part of a plants determination that their pulp and paper sludges meet the contaminant legitimacy criterion. 76 Fed. Reg. at 15489.3 Hexachlorobenzene Even though most creosote

- treated w ood is non

- hazardous, the presence of hexachlorobenze[ne], a CAA 112 HAP, as w ell s the other HAPs, in creosote

- trea ted lumber suggests that creosote

- treated wood includes[s] contaminants at levels that are not comparableto those found in w ood or coal, the fuel that creosote

- treated wood would replace. Evaluat ing contaminants as a group: Another commenter argues tha t any comparison between contaminant levels in the non

hazardous secondary material and contaminant levels in traditional fuels should consider the entire characteristics of the material. Some non

- hazardous secondary materials may have high concentrations of some constituents and low concentrations of others, relative to traditional fuels. Thus, decisions regarding legitimacy will not alw ays be clear cut and the overall characteristics need to be considered qualitatively. In addition, given the variability of constituent concentrations in traditional fuels and non

- hazardous secondary materials, solid w aste determinations which requires a comparison, should allow for such variability in a reasonable manner.

. . . . . We disagree with the commenters that com parison betw

een contaminant levels in the non

- hazardous secondary material and contaminant levels in traditional fuels should consider the entire characteristics of the material. Such an approach w ould suggest that contaminants can be present in the nonhazardous secondary material at levels that are not comparable in concentration to those contained in traditional fuel products, w

hich could result in contaminants being combusted as a means of discarding them. 76 Fed. Reg. at 15525. Com parison to one fuel t ype: The data provided by one company demonstrates that C&D

- derived wood can be sufficiently processed to meet the legitimacy criterion for four contaminants, even w hen these contaminants are compared to untreated w ood concentrationspresented in the background document. ... A complete determination, however, would include As and Cr concentrations. 76 Fed. Reg. at 15485.